State v. Barnett

2022 Ohio 4558

• Court: Ohio Court of Appeals
• Decided: December 19, 2022
• Docket: 6-22-08
• Status: Published

Opinion

[Cite as State v. Barnett, 2022-Ohio-4558.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HARDIN COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 6-22-08

v.

NIKKI NICOLE BARNETT, OPINION

DEFENDANT-APPELLANT.

Appeal from Hardin County Common Pleas Court Trial Court No. 20212203 CRI

Judgment Affirmed

Date of Decision: December 19, 2022

APPEARANCES:

Michael B. Kelley for Appellant

Andrew R. Tudor for Appellee Case No. 6-22-08

ZIMMERMAN, P.J.

{¶1} Defendant-appellant, Nikki Nicole Barnett (“Barnett”), appeals the

May 4, 2022 judgment entry of sentence of the Hardin County Court of Common

Pleas. For the reasons that follow, we affirm.

{¶2} This case stems from Barnett’s conduct between December 23, 2020

and April 3, 2021, which involved stealing items from Walmart by either not paying

for the item or by substituting the price tag on the item with a less expensive price

tag to pay less than full value for the item.

{¶3} On December 30, 2021, the Hardin County Grand Jury indicted Barnett

on Count One of money laundering in violation of R.C. 1315.55(A)(3) and

1315.99(C), a third-degree felony, and Count Two of theft in violation of R.C.

2913.02(A)(1), (B)(2), a fifth-degree felony. On January 20, 2022, Barnett appeared

for arraignment and entered pleas of not guilty to the charges set forth in the

indictment.

{¶4} On March 25, 2022, Barnett withdrew her pleas of not guilty and

entered a guilty plea, under a negotiated-plea agreement, to Count One. In exchange

for her change of plea, the State agreed to dismiss Count Two. Further, as part of

the agreement, the State agreed to a joint-sentencing recommendation. The trial

court accepted Barnett’s guilty plea, found her guilty, dismissed Count Two, and

ordered a pre-sentence investigation.

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{¶5} On May 3, 2022, the trial court sentenced Barnett (based on the joint-

sentencing recommendation of the parties) to five years of community control.

(Doc. No. 38).1 Importantly, as a community-control sanction, the trial court

ordered that Barnett enter (and successfully complete) a community-based-

correctional-facility (“CBCF”) program. The trial court further ordered that Barnett

serve 72 days in jail, with credit for 72-days served, pay a $1,000.00 fine, and pay

$1,426.61 in restitution.

{¶6} On May 11, 2022, Barnett filed her notice of appeal. She raises one

assignment of error for our review.

Assignment of Error

The trial court abused its discretion by ordering Appellant to enter into and complete a CBCF program when the record does not support such a term of community control.

{¶7} In her sole assignment of error, Barnett argues that the record does not

support the trial court’s sentence. Specifically, Barnett contends that the trial court

abused its discretion by sentencing her “to complete a CBCF in-patient treatment

program [because] the record lacks sufficient data to justify a CBCF term and does

not support the need for such a term of community control.” (Appellant’s Brief at

6).

1 The trial court filed its judgment entry of sentence on May 4, 2022. (Doc. No. 38).

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Standard of Review

{¶8} R.C. 2953.08(A) provides specific grounds for a defendant to appeal a

sentence. State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶ 10. Under R.C.

2953.08(G)(2), an appellate court will reverse a sentence “only if it determines by

clear and convincing evidence that the record does not support the trial court’s

findings under relevant statutes or that the sentence is otherwise contrary to law.”

State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1. Clear and convincing

evidence is that “‘which will produce in the mind of the trier of facts a firm belief

or conviction as to the facts sought to be established.’” Id. at ¶ 22, quoting Cross v.

Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.

Analysis

{¶9} However, under R.C. 2953.08(D)(1), “[a] sentence imposed upon a

defendant is not subject to review under this section if the sentence is authorized by

law, has been recommended jointly by the defendant and the prosecution in the case,

and is imposed by a sentencing judge.” “[A] sentence is ‘authorized by law’ and is

not appealable within the meaning of R.C. 2953.08(D)(1) only if it comports with

all sentencing provisions.” Underwood at ¶ 20. “[W]hen a sentence fails to include

a mandatory provision, it may be appealed because such a sentence is ‘contrary to

law’ and is also not ‘authorized by law.’” Id. at ¶ 21.

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{¶10} Here, there is no dispute that Barnett’s five-year community-control

sentence was jointly recommended by the parties and imposed by the trial court.

Indeed, Barnett’s community-control sentence is authorized by law and is not

contrary to law.

{¶11} “‘[T]rial courts have full discretion to impose any sentence within the

statutory range.’” State v. Smith, 3d Dist. Seneca No. 13-15-17, 2015-Ohio-4225,

¶ 10, quoting State v. Noble, 3d Dist. Logan No. 8-14-06, 2014-Ohio-5485, ¶ 9,

citing State v. Saldana, 3d Dist. Putnam No. 12-12-09, 2013-Ohio-1122, ¶ 20. In

this case, as a third-degree felony, the sentence for money laundering is controlled

by R.C. 2929.13(C)—that is, the trial court has discretion to impose a prison term

or community control. See State v. Hitchcock, 157 Ohio St.3d 215, 2019-Ohio-

3246, ¶ 16; State v. Merer, 6th Dist. Wood No. WD-20-015, 2021-Ohio-1553, ¶ 11.

“In exercising its discretion to impose either a prison term or community-control

sanctions for an offense, the trial court must consider the overriding purposes of

felony sentencing under R.C. 2929.11 and the aggravating and mitigating factors

enumerated in R.C. 2929.12.” Hitchcock at ¶ 17. Because the trial court sentenced

Barnett to five years of community control, the trial court’s sentence falls within the

statutory range as provided by R.C. 2929.15(A)(1).

{¶12} However, since Barnett’s community-control sentence was jointly

recommended by the parties and was imposed by the trial court, we need not review

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whether the trial court considered the purposes and principles of felony sentencing

set forth in R.C. 2929.11 or the sentencing factors listed in R.C. 2929.12. That is,

R.C. 2953.08(D)(1) [bars] appeals that would otherwise challenge [a trial] court’s discretion in imposing a sentence, such as whether the trial court complied with statutory provisions like R.C. 2929.11 (the overriding purposes of felony sentencing), 2929.12 (the seriousness and recidivism factors), [or] 2929.13(A) through (D) (the sanctions relevant to the felony degree) or whether consecutive or maximum sentences were appropriate under certain circumstances.

Underwood at ¶ 22.

{¶13} Even if we have the authority to review Barnett’s community-control

sentence, the Supreme Court of Ohio recently directed Ohio’s courts of appeal that

R.C. 2953.08(G)(2)(a) “clearly does not provide a basis for an appellate court to

modify or vacate a sentence if it concludes that the record does not support the

sentence under R.C. 2929.11 and R.C. 2929.12 because * * * R.C. 2929.11 and R.C.

2929.12 are not among the statutes listed in the provision.” State v. Jones, 163 Ohio

St.3d 242, 2020-Ohio-6729, ¶ 31. See also id. at ¶ 28 (referencing that “R.C.

2929.13(B) and (D), 2929.14(B)(2)(e), and 2929.20(I) are specified” “among the

statutory provisions listed in R.C. 2953.08(G)(2)(a)”). As a result, this court may

not modify or vacate a felony sentence based on a finding by clear and convincing

evidence that the record does not support the trial court’s findings under R.C.

2929.11 or 2929.12. State v. Reed, 3d Dist. Union No. 14-20-16, 2021-Ohio-1623,

¶ 19, citing Jones at ¶ 32-39. Consequently, “‘when reviewing felony sentences that

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are imposed solely after considering the factors in R.C. 2929.11 and R.C. 2929.12,

we shall no longer analyze whether those sentences are unsupported by the record.

We simply must determine whether those sentences are contrary to law.’” Id.,

quoting State v. Dorsey, 2d Dist. Montgomery No. 28747, 2021-Ohio-76, ¶ 18.

{¶14} At Barnett’s sentencing hearing and in its sentencing entry, the trial

court considered the R.C. 2929.11 and 2929.12 factors. (May 3, 2022 Tr. at 12-14);

(Doc. No. 38). Thus, based on our review of the record, Barnett’s sentence is

authorized by law and is not contrary to law since it is within the statutory range

and because the trial court considered the R.C. 2929.11 and 2929.12 factors.

{¶15} Nevertheless, Barnett argues that the trial court’s community-control

sanction that she enter (and successfully complete) a CBCF program “was not part

of the joint recommendation” and “is not supported by the record.” (Appellant’s

Brief at 6). “Under R.C. 2929.15(A)(1), a court may impose on a felony offender

who is not required to serve a mandatory prison term one or more community-

control sanctions authorized by statute.” State v. Weber, 5th Dist. Fairfield No. 17-

CA-36, 2018-Ohio-3174, ¶ 26. “That section provides that when sentencing an

offender for a felony, the trial court may impose one or more community sanctions,

including residential, nonresidential, and financial sanctions, and any other

conditions that it considers ‘appropriate.’” State v. Talty, 103 Ohio St.3d 177, 2004-

Ohio-4888, ¶ 10.

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{¶16} “A term of confinement in a CBCF is a community control sanction.”

State v. Anderson, 8th Dist. Cuyahoga No. 102427, 2016-Ohio-7044, ¶ 14, citing

State v. Richmond, 8th Dist. Cuyahoga No. 97531, 2012-Ohio-3946, ¶ 13 and R.C.

2929.16(A)(1). “Courts are authorized to impose CBCF and other residential

sanctions as a community control sanction pursuant to R.C. 2929.16.” Id.

{¶17} “A trial court has broad discretion in setting the conditions of

community control.” State v. Wagener, 6th Dist. Lucas No. L-21-1162, 2022-Ohio-

724, ¶ 13. Consequently, “[w]e review the trial court’s imposition of community-

control sanctions under an abuse-of-discretion standard.” Talty at ¶ 10. An abuse

of discretion implies that the trial court acted unreasonably, arbitrarily, or

unconscionably. State v. Adams, 62 Ohio St.2d 151, 157-158 (1980).

{¶18} However, the Supreme Court of Ohio highlights that such discretion

“is not limitless.” Talty at ¶ 11. “Community control conditions * * * must

reasonably relate to the goals of community control: rehabilitation, administering

justice, and ensuring good behavior.” State v. Ettenger, 10th Dist. Franklin No.

18AP-326, 2019-Ohio-2085, ¶ 8. Consequently,

[t]he relevant inquiry to determine whether a court abused this discretion in imposing a condition is three-fold: (1) is the condition reasonably related to rehabilitating the offender, (2) does it have some relationship to the crime of which the offender was convicted, and (3) does it relate to conduct that is criminal or reasonably related to future criminality and serves the ends of probation.

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State v. Ryan, 11th Dist. Lake No. 2021-L-032, 2021-Ohio-4059, ¶ 30, citing Talty

at ¶ 12 and State v. Dahlberg, 11th Dist. Ashtabula No. 2020-A-0030, 2021-Ohio-

550, ¶ 81. Further, community-control sanctions “‘cannot be overly broad so as to

unnecessarily impinge upon the probationer’s liberty.’” Ettenger at ¶ 8, quoting

State v. Jones, 49 Ohio St.3d 51, 52 (1990).

{¶19} In this case, we conclude that the trial court did not abuse its discretion

by ordering that Barnett enter (and successfully complete) a CBCF program.

Importantly, this sanction is an authorized community-control sanction under R.C.

2929.15 and 2929.16. Accord State v. Struffolino, 6th Dist. Wood No. WD-19-019,

2020-Ohio-1051, ¶ 20 (Zmuda, P.J., concurring). Further, the record reflects that

this residential sanction is reasonably related to rehabilitating Barnett, the

administration of justice, and ensuring her good behavior. See Ettenger at ¶ 11.

{¶20} Moreover, the residential sanction is related to Barnett’s money-

laundering conviction because the record reflects that her substance abuse is related

to her conduct. Specifically, the record reveals that Barnett “tested positive for

multiple illegal substances” at the time of her arraignment, that she tested positive

for methamphetamine while on bond for this offense, and that she concedes that she

“struggle[s] with drug addiction.” (Doc. No. 9); (May 3, 2022 Tr. at 8).

{¶21} Nevertheless, “[i]n fashioning the appropriate sentence for an offense,

the sentencing court may consider facts beyond the offense itself, such as prior

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misconduct.” Ettenger at ¶ 7, citing State v. Bowser, 186 Ohio App.3d 162, 2010-

Ohio-951, ¶ 15 (2d Dist.). Here, the record reflects that Barnett has a criminal

history including “several theft offenses,” which she “lied [about] during the

Presentence Investigation.” (PSI).

{¶22} Furthermore, the trial court’s sanction “is consistent with [her]

rehabilitation and the effort to reduce the likelihood of recidivism.” Ettenger at ¶

11. That is, when ordering that she enter (and successfully complete) a CBCF

program, the trial court stressed that the sanction is related to rehabilitating Barnett.

The trial court also considered that Barnett sought treatment with an outpatient

provider, but ultimately determined that in-patient treatment was necessary to

compel Barnett’s compliance since she “did not seek the diagnostic assessment”

until six weeks after her arraignment or receive any services. (May 3, 2022 Tr. at

11). Therefore, the residential sanction reasonably supports the goals of community

control, and it is not overly broad so as to unnecessarily impinge on her liberty. See

Ettenger at ¶ 11 (“Therefore, the imposed community control conditions that

Ettenger challenges reasonably support the goals of community control, and they

are not overly broad so as to unnecessarily impinge on his liberty.”).

{¶23} For these reasons, Barnett’s assignment of error is overruled.

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{¶24} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

MILLER and WILLAMOWSKI, J.J., concur.

/jlr

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